2005 California Business and Professions Code Sections 22440-22448 CHAPTER 19.5. IMMIGRATION CONSULTANTS

BUSINESS AND PROFESSIONS CODE
SECTION 22440-22448

22440.  It is unlawful for any person, for compensation, other than
persons authorized to practice law or authorized by federal law to
represent persons before the Board of Immigration Appeals or the
United States Citizenship and Immigration Services, to engage in the
business or act in the capacity of an immigration consultant within
this state except as provided by this chapter.
22441.  (a) A person engages in the business or acts in the capacity
of an immigration consultant when that person gives nonlegal
assistance or advice on an immigration matter.  That assistance or
advice includes, but is not limited to, the following:
   (1) Completing a form provided by a federal or state agency but
not advising a person as to their answers on those forms.
   (2) Translating a person's answers to questions posed in those
forms.
   (3) Securing for a person supporting documents, such as birth
certificates, which may be necessary to complete those forms.
   (4) Submitting completed forms on a person's behalf and at their
request to the United States Citizenship and Immigration  Services.
   (5) Making referrals to persons who could undertake legal
representation activities for a person in an immigration matter.
   (b) "Immigration matter" means any proceeding, filing, or action
affecting the immigration or citizenship status of any person which
arises under immigration and naturalization law, executive order or
presidential proclamation, or action of the United States Citizenship
and Immigration  Services, the United States Department of State, or
the United States Department of Labor.
   (c) "Compensation" means money, property, or anything else of
value.
   (d) Every person engaged in the business or acting in the capacity
of an immigration consultant shall only offer nonlegal assistance or
advice in an immigration matter as defined in subdivision (a).  Any
act in violation of subdivision (a) is a violation of this chapter.
22442.  (a) Every person engaged in the business or acting in the
capacity of an immigration consultant who enters into a contract or
agreement with a client to provide services shall, prior to providing
any services, provide the client with a written contract, the
contents of which shall be prescribed by the Department of Consumer
Affairs in regulations.
   (b) The written contract shall include all provisions relating to
the following:
   (1) The services to be performed.
   (2) The costs of the services to be performed.
   (3) There shall be printed on the face of the contract in 10-point
boldface type a statement that the immigration consultant is not an
attorney and may not perform the legal services that an attorney
performs.
   (4) The written contract shall list the documents to be prepared
by the immigration consultant, and shall explain the purpose and
process of each document.
   (5) The written contract shall state the purpose for which the
immigration consultant has been hired and the actions to be taken by
the immigration consultant regarding each document, including the
agency and office where each document will be filed and the
approximate processing times according to current published agency
guidelines.
   (c) An immigration consultant may not include provisions in the
written contract relating to the following:
   (1) Any guarantee or promise, unless the immigration consultant
has some basis in fact for making the guarantee or promise.
   (2) Any statement that the immigration consultant can or will
obtain special favors from or has special influence with the United
States Citizenship and Immigration Services, or any other
governmental agency, employee, or official, that may have a bearing
on a client's immigration matter.
   (d) The provisions of the written contract shall be stated both in
English and in the client's native language.
   (e) A written contract is void if it is not written pursuant to
subdivision (d).
   (f) The client shall have the right to rescind the contract within
72 hours of signing the contract.  The contents of this subdivision
shall be conspicuously set forth in the written contract in both
English and the client's native language.
   (g) An immigration consultant may not make the statements
described in subdivision (c) orally to a client.
   (h) This section does not apply to employees of nonprofit,
tax-exempt corporations who help clients complete application forms
in an immigration matter free of charge or for a fee, including
reasonable costs, consistent with that authorized by the  Board of
Immigration Appeals under Section 292.2 of Title 8 of the Code of
Federal Regulations.
22442.1.  (a) A person engaged in the business or acting in the
capacity of an immigration consultant shall provide a signed receipt
to a client for each payment made by that client.  The receipt shall
be typed or computer generated on the consultant's letterhead.
   (b) A statement of accounting for the services rendered and
payments made shall be provided to the client every two months, shall
be typed or computer generated on the immigration consultant's
letterhead, and shall display the individual charges and total
charges for services and the client's payments offsetting those
charges.  The consultant shall provide the client a written
translation of the statement in the client's native language.
22442.2.  (a) An immigration consultant shall conspicuously display
in his or her office a notice that shall be at least 12 by 20 inches
with boldface type or print with each character at least one inch in
height and width in English and in the native language of the
immigration consultant's clientele, that contains the following
information:
   (1) The full name, address, and evidence of compliance with any
applicable bonding requirement including the bond number, if any.
   (2) A statement that the immigration consultant is not an
attorney.
   (3) The services that the immigration consultant provides and the
current and total fee for each service.
   (4) The name of each immigration consultant employed at each
location.
   (b) Prior to providing any services, an immigration consultant
shall provide the client with a written disclosure in the native
language of the client that shall include the following information:
   (1) The immigration consultant's name, address, and telephone
number.
   (2) The immigration consultant's agent for service of process.
   (3) The legal name of the employee who consulted with the client,
if different from the immigration consultant.
   (4) Evidence of compliance with any applicable bonding
requirement, including the bond number, if any.
   (c) (1) Except as provided in paragraph (2) or (3), an immigration
consultant who prints, displays, publishes, distributes, or
broadcasts, or who causes to be printed, displayed, published,
distributed, or broadcasted, any advertisement for services as an
immigration consultant, within the meaning of Section 22441, shall
include in that advertisement a clear and conspicuous statement that
the immigration consultant is not an attorney.
   (2) Notwithstanding paragraph (1), a person engaging in the
business or acting in the capacity of an immigration consultant who
is not licensed as an attorney in any state or territory of the
United States, but is authorized by federal law to represent persons
before the Board of Immigration Appeals or the United States
Citizenship and Immigration Services, shall include in any
advertisement for services as an immigration consultant a clear and
conspicuous statement that the immigration consultant is not an
attorney but is authorized by federal law to represent persons before
the Board of Immigration Appeals or the United States  Citizenship
and Immigration Services.
   (3) Notwithstanding paragraph (1), a person who is not an active
member of the State Bar of California, but is an attorney licensed in
another state or territory of the United States and is admitted to
practice before the Board of Immigration Appeals or the United States
  Citizenship and Immigration Services, shall include in any
advertisement for immigration  services a clear and conspicuous
statement that  he or she is not an attorney licensed to practice law
in California but is an attorney licensed in another state or
territory of the United States and is authorized by federal law to
represent persons before the Board of Immigration Appeals or the
United States Citizenship and Immigration  Services.
   (4) If an advertisement subject to this subdivision is in a
language other than English, the statement required by this
subdivision shall be in the same language as the advertisement.
22442.3.  An immigration consultant shall not, with the intent to
mislead, literally translate, from English into another language, the
words or titles, including, but not limited to, "notary public,"
"notary," "licensed," "attorney," "lawyer," or any other terms that
imply that the person is an attorney, in any document, including an
advertisement, stationery, letterhead, business card, or other
comparable written material describing the immigration consultant.
   (b) For purposes of this section, "literal translation" of a word
or phrase from one language means the translation of a word or phrase
without regard to the true meaning of the word or phrase in the
language that is being translated.
   (c) An immigration consultant may not make or authorize the making
of any verbal or written references to his or her compliance with
the bonding requirements of Section 22443.1 except as provided in
this chapter.
22443.  (a) A person engaged in the business or acting in the
capacity of an immigration consultant shall deliver to a client a
copy of each document or form completed on behalf of the client.
Each document and form delivered must include the name and address of
the immigration consultant.
   (b) (1) A person engaged in the business or acting in the capacity
of an immigration consultant shall retain copies of all documents
and forms of a client for not less than three years from the date of
the last service to the client.
   (2) Upon presentation of a written consent signed by a client, an
immigration consultant shall provide a copy of the client file to law
enforcement without a warrant or a subpoena.
   (c) (1) A person engaged in the business or acting in the capacity
of an immigration consultant shall return to a client all original
documents, including, but not limited to, original birth
certificates, rental agreements, utility bills, employment stubs,
Department of Motor Vehicle licenses with dates of entry, and
passports, that the client has provided to the consultant in support
of the client's application.
   (2) Any original document that does not need to be submitted to
immigration authorities as an original document shall be returned by
the immigration consultant immediately after making a copy or
reproduction thereof.
22443.1.  (a) (1) Prior to engaging in the business or acting in the
capacity of an immigration consultant, each person shall file with
the Secretary of State a bond of fifty thousand dollars ($50,000)
executed by a corporate surety admitted to do business in this state
and conditioned upon compliance with this chapter.  The total
aggregate liability on the bond shall be limited to fifty thousand
dollars ($50,000).
   (2) The bond may be terminated pursuant to Section 995.440 of, and
Article 13 (commencing with Section 996.310) of Chapter 2 of Title
14 of Part 2 of, the Code of Civil Procedure.
   (b) The bond required by this section shall be in favor of, and
payable to, the people of the State of California and shall be for
the benefit of any person damaged by any fraud, misstatement,
misrepresentation, unlawful act or omission, or failure to provide
the services of the immigration consultant or the  agents,
representatives, or employees of the immigration consultant while
acting within the scope of that employment or agency.
   (c) An immigration consultant who is required to file a surety
bond with the Secretary of State shall also file a disclosure form
with the Secretary of State that contains all of the following
information:
   (1) The immigration consultant's name, date of birth, residence
address, business address, residence telephone number, and business
telephone number.
   (2) The name and address of the immigration consultant's agent
for service of process if one is required to be or has been
appointed.
   (3) Whether the immigration consultant has ever been convicted of
a violation of this chapter or of Section 6126.
   (4) If applicable, the name, business address, business telephone
number, and agent for service of process of the corporation or
partnership employing the immigration consultant.
   (d) An immigration consultant shall notify the Secretary of State'
s office in writing within 30 days when the surety bond required by
this section is renewed, and of any change of name, address,
telephone number, or agent for service of process.
   (e) The Secretary of State shall post information demonstrating
that an immigration consultant is in compliance with the bond
required by this section on its Web site.  The Secretary of State
shall ensure that the information is current and shall update the
information at least every 30 days.
   (f) The Secretary of State shall develop the disclosure form
required to file a bond under this section and make it available to
any immigration consultant filing a bond pursuant to this section.
   (g) An immigration consultant shall submit with the disclosure
form a copy of valid and current photo identification to determine
the immigration consultant's identity, such as a California driver's
license or identification card, passport, or other identification
acceptable to the Secretary of State.
   (h) The Secretary of State shall charge and collect a filing fee
to cover the cost of filing the bond.
   (i) The Secretary of State shall enforce the provisions of this
chapter that govern the filing and maintenance of bonds.
   (j) This section does not apply to employees of nonprofit,
tax-exempt corporations who help clients complete application forms
in an immigration matter free of charge or for a fee, including
reasonable costs, consistent with that authorized by the Board of
Immigration Appeals under Section 292.2 of Title 8 of the Code of
Federal Regulations.
22443.3.  It is unlawful for any person to disseminate by any means
any statement indicating directly or by implication that the person
engages in the business or acts in the capacity of an immigration
consultant, or proposes to engage in the business or act in the
capacity of an immigration consultant, unless the person has on file
with the Secretary of State a bond, in the amount and subject to the
terms described in Section 22443.1, that is maintained throughout the
period covered by the statement, such as, but not limited to, the
period of a yellow pages listing.
22444.  It is unlawful for any person engaged in the business or
acting in the capacity of an immigration consultant to do any of the
following acts:
   (a) Make false or misleading statements to a client while
providing services to that client.
   (b) Make any guarantee or promise to a client, unless the
guarantee or promise is in writing and the immigration consultant has
some basis in fact for making the guarantee or promise.
   (c) Make any statement that the immigration consultant can or will
obtain special favors from or has special influence with the United
States Citizenship and Immigration Services, or any other
governmental agency, employee, or official, that may have a bearing
on a client's immigration matter.
   (d) Charge a client a fee for referral of the client to another
for services which the immigration consultant cannot or will not
provide to the client.  A sign setting forth this prohibition shall
be conspicuously displayed in the immigration consultant's office.
22445.  (a) (1) A person who violates this chapter shall be subject
to a civil penalty not to exceed one hundred thousand dollars
($100,000) for each violation, to be assessed and collected in a
civil action brought by any person injured by the violation or in a
civil action brought in the name of the people of the State of
California by the Attorney General, a district attorney, or a city
attorney.  An action brought in the name of the people of the State
of California shall not preclude an action being brought by an
injured person.
   (2) The court shall impose a civil penalty for each violation of
this chapter.  In assessing the amount of the civil penalty, the
court  may consider relevant circumstances presented by the parties
to the case, including, but not limited to, the following:  the
nature and seriousness of the misconduct, the number of violations,
the persistence of the misconduct, the length of time over which the
misconduct occurred, the willfulness of the defendant's misconduct,
and the defendant's assets, liabilities, and net worth.
   (3) Any action brought pursuant to this section by the Attorney
General, a district attorney, or a city attorney shall also seek
relief under subdivision (c) of Section 22446.5.
   (4) If the Attorney General brings the action, one-half of the
civil penalty collected shall be paid to the treasurer of the county
in which the judgment was entered, and one-half to the General Fund.
If a district attorney brings the action, the civil penalty
collected shall be paid to the treasurer of the county in which the
judgment was entered.  If a city attorney brings the action, one-half
of the civil penalty collected shall be paid to the treasurer of the
city in which the judgment was entered, and one-half to the
treasurer of the county in which the judgment was entered.
   (b) In addition to the provisions of subdivision (a), a violation
of this chapter is a misdemeanor punishable by a fine of not less
than two thousand dollars ($2,000) or more than ten thousand dollars
($10,000), as to each client with respect to whom a violation occurs,
or imprisonment in the county jail for not more than one year, or by
both fine and imprisonment.  However, payment of restitution to a
client shall take precedence over payment of a fine.
   (c) A second or subsequent violation of Sections 22442.2, 22442.3,
and 22442.4 is a misdemeanor subject to the penalties specified in
subdivisions (a) and (b).  A second or subsequent violation of any
other provision of this chapter is a felony punishable by
imprisonment in state prison.
22446.5.  (a) A person claiming to be aggrieved by a violation of
this chapter by an immigration consultant may bring a civil action
for injunctive relief or damages, or both.  If the court finds that
the defendant has violated a provision of this chapter, it shall
award actual damages, plus an amount equal to treble the amount of
actual damages or one thousand dollars ($1,000) per violation,
whichever is greater.  The court shall also grant a prevailing
plaintiff reasonable attorneys' fees and costs.
   (b) Any other party who, upon information and belief, claims a
violation of this chapter has been committed by an immigration
consultant may bring a civil action for injunctive relief on behalf
of the general public and, upon prevailing, shall recover reasonable
attorneys' fees and costs.
   (c) The Attorney General, a district attorney, or a city attorney
who claims a violation of this chapter has been committed by an
immigration consultant, may bring a civil action for injunctive
relief, restitution, and other equitable relief against the
immigration consultant in the name of the people of the State of
California.
   (d) An action brought under this chapter shall be set for trial at
the earliest possible date, and shall take precedence over all other
cases, except older matters of the same character and matters to
which special preference may be given by law.
22447.  (a) A person who is awarded damages in an action or
proceeding for injuries caused by the acts of a person engaged in the
business of, or acting in the capacity of, an immigration
consultant, in the performance of his or her duties as an immigration
consultant, may recover damages from the bond required by Section
22443.1.  In an action brought by the Attorney General, a district
attorney, or a city attorney, the court may order relief for benefit
of the injured parties to be paid from the bond.
   (b) When any claim or claims against a bond have been paid so as
to reduce the principal amount of the bond remaining available to pay
claims below the principal amount required by Section 22443.1, the
immigration consultant shall cease to conduct any business unless and
until the bond has been reinstated up to the minimum amount required
by Section 22443.1.
22448.  Any civil action to enforce any cause of action pursuant to
this chapter shall be commenced within four years after the cause of
action has accrued.  The cause of action is not to be deemed to have
accrued until the discovery, by the aggrieved party, of the facts
constituting the violation.


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